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: Restrictive Measures as Tools of EU Foreign and Security Policy: Promoting values, from Antiterrorism to Country Sanctions

Charlotte Beaucillon [1]

ABSTRACT: This chapter questions the extent to which restrictive measures of the European Union contribute to the European Union's sanctioning powers. This is not so obvious if one considers that restrictive measures are part of the practice of international sanctions: they consist either of measures to enforce collective measures decided by the Security Council of the United Nations, or of unilateral measures adopted by the European Union proprio motu in reaction to behavior that it considers contrary to international law. However, could it not also be considered that the Union, while pursuing the objective of respecting international law, would also be pursuing the objective of respecting its own law, values and interest? In this chapter, I begin by demonstrating how the connection between sanctioning international law and sanctioning EU values is made in the practice of restrictive measures. I then highlight three legal mechanisms by which the European Union exports its values and its interpretation of law on the international scene: the coordination of Member States in third international organisations, the insertion of specific clauses in its international treaties, and the reaction to serious violations of customary international human rights law. Ultimately, it appears that while the practice of restrictive measures may be considered in some respects as a means of expressing the European Union's sanctioning powers, it is necessary to consider the consequences of the exercise of such a power - especially when it is unilateral - on third parties, who might ultimately challenge its legitimacy.

KEYWORDS: international sanctions - EU Restrictive measures - EU values - treaty breach - human rights violations

SUMMARY: 10.1. Introduction. - 10.2. Normative synergies: promoting EU values through international sanctions. - 10.2.1. The two faces of Janus: a double qualification in EU and international law. - 10.2.2. EU restrictive measures as international sanctions. - 10.2.3. The double purpose of EU restrictive measures: respect for international law and EU values. -

10.3. The mechanics of normative exportation: linking EU values to international law. -10.3.1. EU restrictive measures implementing UNSC counter-terrorism resolutions: exporting human rights to the international collective security system through the EU memher States. - i. Member states obligations under EU and UN law: a combined reading. - ii. The coordination of the Union and the UN by their common Member States. — 10.3.2. EU restrictive measures imposing autonomous sanctions in reaction to a treaty breach: exporting human rights, democracy and the rule of law to third-country partners. - 10.3.3. EU restrictive measures imposing autonomous sanctions in reaction to violations of customary international law: the case of massive human rights violations. - 10.4. Conclusions.

: Introduction

To what extent does respect for human rights in Syria, the Iranian nuclear crisis or the international fight against terrorism fall within the scope of the enforcement of European Union law? Wondering whether EU restrictive measures contribute to EU law enforcement may seem surprising. However, EU restrictive measures differ very strongly from the other facets of EU law enforcement that have been developed in the other contributions to this collective volume. Their specificity deserves a twofold preliminary clarification.[2]

First, restrictive measures react to an alleged violation of international law by a third State or entity. For instance, the EU has adopted restrictive measures in reaction to the disrespect by Iran of its international obligations under the 1968 Non-Proliferation Treaty and the diverse resolutions adopted by the United Nations Security Council (UNSC) since 2006. It has also adopted restrictive measures to condemn the violation of Ukraine’s territorial integrity when Russia annexed Crimea in 2014. Another example is the adoption of restrictive measures in reaction to the massive violations of human rights by the Syrian regime against its own population. The first question arising from the inclusion of EU restrictive measures in the study of the EU sanctioning powers is twofold: can the EU “sanction” the violation of international law by third States/entities? And, when doing so, is the EU also sanctioning a breach of EU law?

Second, EU restrictive measures contribute to the international practice of international sanctions. When analyzed closely, the single EU law category of EU restrictive measures unfolds into two different international law instruments. On the one hand, EU restrictive measures can be aimed at implementing the resolutions that the UNSC has adopted under Chapter VII of the UN Charter to maintain international peace and security, which are binding on all EU Member States and which they implement collectively through the EU. On the other hand, the EU on its own initiative can impose EU restrictive measures. In this case, they range in the category of autonomous unilateral sanctions together with the United-States’ unilateral sanctions for instance. In both cases though, the political aim of UN-based or unilateral sanctions is the same: constraining their targets to change behavior in order to conform to their international obligations. The second question arising from the study of EU restrictive measures as a part of EU law enforcement is to what extent the EU is exporting its own values and its own interpretation of international law on the international stage, when it seeks to influence third parties’ behavior in the name of respect for international law.

The European Union’s export of its values to third parties, States or international organizations raises a preliminary issue: the very existence of values that would be specific to the European Union.

First of all, the notion of EU values refers to a set of values that would be characteristic of the European Union’s identity on the international scene. A historical reading of this question reminds us that the genesis of the European project is inextricably linked to the end of the Second World War: the Union is being structured in response to its own devastation. Devastation on the one hand, due to the inability of European forces to maintain a sufficient balance between them, in order to avoid armed conflicts between European states. Devastation on the other hand, by the inability to stand up against nazi and fascist totalitarianism, their crimes against humanity and the Shoah, leading to the birth of a new international crime, genocide. The Union is thus structured around two pairs. The first, combining peace and reconciliation, responds to the need to bring lasting peace to the continent. The second, combining freedom and solidarity, puts the individual and his or her rights back at the heart of the European project.

All these values, which are enshrined in Articles 3(5) and 21 of the TEU, are undeniably liberal in nature and were consecrated at the universal level after the Second World War, as illustrated by the 1948 Universal Declaration of Human Rights (UDHR)’or the 1966 International Covenant on Civil and Political Rights (IC-CPR).’1 To what extent, then, should the proper European character of such values be defined? From a political point of view, it will suffice here to recall that the universality of international human rights law has been the subject of various challenges, because of its European origin, in particular through the concept of the cultural relativity of human rights. From a legal point of view, the diversity of techniques for implementing legal principles as general as freedom or human dignity should be highlighted, as their universal nature does not prevent the development of regional protection mechanisms expressing all their specificity. The issue here will therefore [3]

be to examine how the European Union reinterprets these liberal values in the light of its own legal order before re-exporting them to third parties, and not to seek a strictly European origin - as it were - for certain values.

In light of the above, I will first explain the extent to which EU restrictive measures can be considered international sanctions, and how they serve the exportation of EU values to third parties (2). Second, I will outline the different legal mechanisms at work to achieve this export of values, depending on whether the restrictive measures are linked to a UNSC measure, a treaty breach or a breach of customary international law (3). I will then conclude with a broader perspective on the possible consequences of such a power of the Union (4).

  • [1] Professor of International and EU Law, University of Lille.
  • [2] This chapter draws on some of the results of previous comprehensive research on European Union restrictive measures: Ch. Beaucillon, Les mesures restrictives de l’Union européenne (Bruylant 2014). 2 The definition of international sanctions is dealt with in details in the following section: see below 2.2. EU restrictive measures as sanctions, esp. note 32.
  • [3] ■•Adopted and opened for signature, ratification and accession by A/RES/2200A (XXI), 16 December 1966, entered into force 23 March 1976, United Nations, Treaty Series, vol. 999, p. 171.
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